How can we discipline a new employee who takes unplanned, unexcused days off for sickness, family emergencies, etc.? We don’t currently have a policy on how many unexcused days off are allowed.
Wisconsin employers have an interest in ensuring that their employees do not engage in misconduct, including unplanned, unexcused time off from work. Accordingly, the Wisconsin Statues for unemployment compensation include provisions that permit discharging an employee for engaging in misconduct. “Misconduct” is one or more actions or a series of conduct that evinces willful or wanton disregard of an employer’s interests. The employee’s conduct must be in deliberate violation or disregard of standards of behavior that an employer has a right to expect of employees, or in carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design of equal severity to such disregard, or to show an intentional and substantial disregard of an employer’s interests, or of an employee’s duties and obligations to his or her employer.
The Wisconsin Statutes for unemployment compensation provide protection for employers who do not have a policy explicitly permitting a certain number of unplanned, unexcused absences by permitting the discharge of an employee for absenteeism. Specifically, when an employee engages in more than two occasions of absenteeism within a 120-day period, if the employee does not provide notice and one or more valid reason for their absenteeism, their employer is permitted to discharge the employee for such absenteeism. This provision does not define how long an employee must be working for their employer for the statute to apply, indicating that it takes effect immediately upon employment. Should the new employee repeatedly fail to provide notice to their employer for the unexcused absences, then the employer is permitted to discharge the employee in accordance with Wisconsin Statutes.
If the employee provides notice, they must also provide one or more valid reason for the absence. For example, an employee who must take time off for family emergencies must comply with the rules set forth within the Wisconsin Family and Medical Leave Act or the Federal FMLA. If an employee is eligible for family or medical leave, the employer may require the employee to provide certification, stating that the child, spouse, domestic partner, parent, or employee has a serious health condition, and indicate the date the serious health condition commenced and its probable duration.
An employer can opt out of the statutory definition of misconduct by absenteeism and set its own absenteeism policy. The violation of such a policy will constitute statutory misconduct. Employers who choose to draft their own absenteeism policy within their employment manual must ensure that the employee has acknowledged receipt of the manual and the absenteeism policy. Should employers choose to draft their employment manual to include language pertaining to unplanned, unexcused work, such a policy may not be more limiting than the state statutes prohibiting absenteeism.
Finally, absences by employees may be protected if the employee has a legally cognizable disability under the Wisconsin Fair Employment act or the American with Disabilities Act. Employers who are on notice of an actual or perceived disability must engage in the interactive process prior to discipline or termination of an employee and potentially engage in a reasonable accommodation of such disability if there is no undue hardship.
Understanding your right as an employer to ensure that employees appear for work by informing your employees of the requirement to provide notice of an absence can help you manage the needs of your business and set your employees up for success.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.